
APPOINTED BY THE 


BOARD OF EDUCATION 

/ 

Of the City and County of San Francisco, 

TO INQUIRE INTO 


A. CASE OF DISCIPLINE 

IN THE LINCOLN SCHOOL. 


r A. 1 ‘L?/ 




*7 r*y . u ;t \ -JL V 


Approved and Adopted by the Board, 



SAN FRANCISCO: 

ALTA CALIFORNIA PRINTING HOUSE, 
529 California Street. 

• 1870. 









REPORT. 


The Special Committee, to whom was referred the 
matter of the alleged severe punishment of a boy in 
the Lincoln School, beg leave respectfully to report that 
they have carefully examined both the complainant and 
his mother, as also the teacher and pupils who were 
present at the time the punishment took place, and 
they find the following to be the 

FACTS IN THE CASE. 

The boy punished, John N. Goldsmith, aged 14 years, 
resides with his parents at No. 721 O’Farrell street, 
and has been a pupil of the Lincoln School for three 
years. He, with some forty other pupils of Mrs. James’ 
class, to which he belonged, was detained after school 
on Thursday, March 3d, for failing to recite a lesson in 
Analysis satisfactorily, which lesson had been given 
them the day previous to be learned, over night, at home. 
Mrs. James, the teacher, remained with the delinquents, 
and at about four o’clock heard them in the lesson and 
found that about thirty had mastered it, who were at 
once dismissed ; the remainder, having again failed, 
were given twenty minutes more in which to study the 
lesson in question. John N. Goldsmith was one of 


4 


these, and was observed both by bis teacher and Miss 
Forbes, a teacher in the same school, casually in the 
class-room at the time, to be giving little or no attention 
to his book. This is also testified to by some of the 
boys detained with him. Both of the ladies positively 
state that he had his book turned upside down, and his 
teacher warned him that if he did not know his lesson 
at the expiration of the time, she would punish him. 
This apparently had no effect upon him. His teacher 
extended the time to twenty-five minutes, and then 
called upon him to recite. He again failed, when the 
teacher, Mrs. James, told him she must punish him, and 
asked him to hold out his hand. He replied, u I won’t.” 
Teacher said, u Oh yes, you will hold out your hand.” 
Boy replied again, “I won’t.” The teacher then said 
to him, “Mr. Marks is not in the building; I will ask 
you but once more to hold out your hand ; if you refuse 
I shall then turn you over to Mr. Robertson — hut you 
will hold out your hand and take your punishment like 
a man, and go home and learn your lesson. Now, hold 
out your hand.” He said, u I won’t.” Mrs. James then 
said to Mr. W. A. Robertson, a sub-master in the school 
and present at that moment in her class-room, “ this is 
a case that requires your attention, and one that I am 
unable to deal with.” Mr. R. then asked the boy to 
hold out his hand to Mrs. James. He replied, “I won’t 
do it.” Mr. R. said, u Yes, you will ; if you don’t, I 
will make you do it.” The testimony is positive, that 
the boy was repeatedly asked by Mr. R. to hold out his 
hand before he was struck a blow ; also that the boy 
had his hands thrust deep into the pockets of his 
pantaloons, and acted otherwise in a defiant manner. 


5 


Mr. Robertson then struck him across his back with a 
rattan. Mrs. J ames thinks that after the first blow, Mr. 
R. asked the boy and before striking him the second 
blow, to hold out his hand. The boy refusing he was 
again struck across his back. The boy was struck a 
number of times ; it would be impossible to state the 
exact number, as no one professed to count, but 
according to the testimony of Mr. Robertson and of the 
pupils present, it must have been from twenty to thirty. 
During the whipping, the boy was asked repeatedly to 
hold out his hand. Mr. R. desisted from whipping 
upon being told by one of the ladies that John was 
holding out his hand. This, the boy in his testimony 
denied, i. e. that he held out his hand at that time. 
Mr. R. was also convinced that he had not. All the 
remaining pupils, except John, were then dismissed. 
Mr. R. then called upon the boy to hold out his hand, 
which he readily did. Mr. R. without again striking 
him, handed the rattan to Mrs. James, and told the boy 
he must hold out his hand to her. The boy unhesita-. 
tingly obeyed. Mrs. James then said to him, “ I would 
not strike you for the world .’ 7 It is clearly proven and 
admitted by all. that the boy was not struck either by 
Mr. R. or Mrs. James after he held out his hand as 
requested. The punishment was then clearly one for 
persistent disobedience and open defiance to the 
authority of the teacher. 

As to what was the teacher’s right and duty under 
circumstances of such stubbornness to authority, it 
hardly rises to the dignity of a question. If a teacher 
ever be allowed to punish a pupil, here is a clear case 
of his right so to do. Resistance to constituted author- 


6 


ity, whether on the part of individuals or that of 
communities, must be overcome, unless, indeed, we are 
prepared to see anarchy and confusion supplant law 
and order. 

Fortunately law and custom have defined the school- 
master’s rights as well as those of other classes in our 
community, otherwise our teachers, no matter what 
their standing, could be unceremoniously dragged from 
their positions before a so-called bar of justice, and at 
the caprice of a magistrate — anxious, perhaps, in these 
days of elective judiciary, as much for his own advance- 
ment as for the ends of justice, in bidding for the 
applause of the rabble — be hurled among felons, and 
wear for the remainder of their days a mark of 
disgrace as indelible as that fixed upon Cain. 

Authoritative decisions, whether from the bench or 
from those entrusted by law with the control of our 
educational interests, must, with common law, supply 
whatever is lacking in our statutory law ; not that the 
latter is entirely silent, as will be shown later. 

Hon. Horace Mann, for many years State Sup’t of 
Com. Schools in Massachusetts, says: “He who denies 
the necessity of resorting to punishment in our schools, 
and to corporal punishment, too, virtually affirms two 
things : — first, that this great number of children 
scooped up from all places, taken at all ages, and in all 
conditions, can be deterred from the wrong and at- 
tracted to the right without punishment ; and secondly, 
he asserts that the five thousand persons whom the towns 
and districts employ to keep their respective common 
schools, are now, and in the present condition of things, 
able to accomplish so glorious a work. Neither of 


7 


these propositions am I, at present, prepared to admit. 
* * Great as the evil is (corporal punishment,) I 

admit that it is less than the evil of insubordination or 
disobedience. * * Corporal punishment should be 

with a rod,” and “ in regard to the extent or severity 
of punishment, it is obvious that it must be a reality 
and not a sham. Punishment should be inflicted in 
ordinary cases privately — at recess, or in another 
department, or after the close of school. In the 
present state of society * * punishment, and even 

corporal punishment, cannot be dispensed with by all 
teachers, in all schools, and with regard to all schol- 
ars.’ 7 

In the Annual Report of the School Committee of 
the city of Boston, for the year 1867, it is stated : 

“No subject connected with education has attracted 
more public attention the past year, than corporal pun- 
ishment. Instances, in which it had been inflicted with 
extreme severity, or under circumstances unusually ob- 
jectionable, provoked discussions in the daily journals, and 
led to indignant remonstrance in separate publications. 
The Governor, in his inaugural, urged its prohibition 
by law, and a proposition to relinquish the practice 
in Boston, after debate in the Board, was referred 
to its Committee on Rules and Regulations. Their Re- 
port, believed to represent the opinion of a large major- 
ity of the Committee and also of the masters and teach- 
ers, recommended that the rod be retained, not simply as 
an emblem of authority — as the sword in the court- 
room — but as a last resort, where other means fail. 
This Report being accepted, settles for the present all 
doubt as to what is the established policy here, and 



8 


sets forth the mode and measure in which discipline, 
when imperative, shall be administered. Order and 
quiet must be preserved. Fifty well conducted pupils, 
intent on their tasks, ought not to be disturbed by one 
who is fractious, and chooses to do as he likes. He can 
neither be permitted to interrupt their lessons by 
whispering or restlessness, nor set them a bad example 
by the indulgence of a froward and obstinate temper. — 
Much better for him to bear a momentary smart, * 

* than evil propensities, pernicious alike to himself 
and society, should go unchecked. Suspension of 
children, when disorderly, is not therefore the remedy, 
unless other special schools, under more rigorous disci- 
pline are provided * * for such as are not amen- 

able to kindness, and are wholly incorrigible in any other 
way. If civil society cannot be carried on among grown 
people without laws and penalties for their violation, 
this is not to be expected of the schools. * * If the 

right direction cannot be given by counsel and caution, 
kindness and patient care, the heedlessness of childhood 
must sometimes be compelled to associate the ideas of 
fault with punishment, of vice and folly with disgrace. 
The disgrace is in the fault 1 and not in the penalty . * * 

In degree, it should never be excessive, * * and if 

the child will not, with due submission, take one blow 
or more, if needed, from the teacher, he should take 
double the number from the master, when summoned 
in aid. As long as human nature at maturity requires 
correction, or among the nations the ‘ultima ratio’ is 
war, the rod will continue the ultimate argument in the 
schools. Certain faults must be eradicated, whatever 
the cost. Dishonesty, or untruthfulness, should be sum- 


9 


marily dealt with. If reproof and expostulation are un- 
availing, not to chastise would be a fatal mistake.” 

Our limits will admit of the selection of but few of 
the many legal decisions touching the rights of the 
schoolmaster. Blackstone says “The tutor or school- 
master has such a portion of the power of the parent 
to restrain and correct, as may be necessary to answer 
the purposes for which he was employed.” Chief Jus- 
tice Holt says, “ a master may justify the beating of 
his scholar, if the beating be in the nature of correc- 
tion only, and with a proper instrument.” 11 The power 
allowed by law to the parent over the person of the 
child may be delegated to a tutor or instructor, the 
better to accomplish the purpose of correction. (2 Kent 
Com. 205). “A schoolmaster stands in loco parentis , 
and may in proper cases inflict moderate and reasona- 
ble chastisement.” (The State vs. Pendergast, 2 Dev. 
& Battle, 365). “The power of the parent to restrain 
and coerce obedience in children cannot be doubted, 
and it has seldom or never been denied. The power 
delegated to the master by the parent, must be accom- 
panied for the time with the same right, as incidental, 
or the object sought must fail of accomplishment.” 
(Stevens vs. Fassett, 27 Maine 280). In English law, 
according to 1 Blackstone, (452) “the parent may law- 
fully correct his child, being under age, in a reasonable 
manner.” So also in American law. (2 Kent’s Com. 
203). Hon. John A. Dix, when superintendent of schools 
for the State of New York, gave the following as his 
opinion: “ The practice of inflicting corporal punish- 
ment upon scholars in any case whatever, has no 
sanction but usage. The teacher is responsible for 


10 


maintaining good order, and he must be the judge of 
the degree and nature of the punishment required 
when his authority is set at defiance. At the same time 
he is liable to the party injured for any abuse of a pre- 
rogative which is wholly derived from custom.” (Supt. 
Com. Schools, Decisions 102). The Supreme Court of 
Indiana says : u The law still tolerates corporal pun- 
ishment in the school-room. The authorities are all 
that way, and the Legislature has not thought proper 
to interfere.” The Supreme Court of Vermont says : 
“A schoolmaster has the right to inflict reasonable 
corporal punishment. He must exercise reasonable 
judgment and discretion in determining when to pun- 
ish and to what extent. * * Among reasonable 

persons much difference prevails as to the circumstances 
which will justify the infliction of punishment, and the 
extent to which it may be properly administered. On 
account of this difference of opinion and the difficulty 
which exists in determining what is a reasonable pun- 
ishment, and the advantage which the master has by 
being on the spot to know all the circumstances, the 
manner, look, tone, gestures of the offender (which are 
not always easily described) and thus to form a correct 
opinion asdo the necessity and extent of the punish- 
ment, considerable allowance should be made to the 
teacher by way of protecting him in the exercise of his 
discretion. Especially should he have this indulgence, 
when he appears to have acted from good motives, and 
not from anger or malice. Hence the teacher is not 
to be held liable on the ground of excess of punish- 
ment, unless the punishment is clearly excessive, and 
would be held so in the general judgment of reasonable 


11 


men. * * If there be any reasonable doubt whether 

the punishment was excessive, the master should have 
the benefit of that doubt. 

A case is given ( The State vs. Pendergast, 2 Dever 
and Bat. R. 365), similar to the one now under adjudi- 
cation : Miss Pendergast kept a school for small chil- 
dren, and punished one of them with a rod, to such an 
extent as to leave marks, all of which were such as 
were likely to pass away in a short time, and leave no 
permanent injury. The judge instructed the jury that 
if they believed that the. child (six or seven years of 
age) had been whipped by the defendant, at that ten- 
der age, with either a switch or other instrument, so as 
to produce the marks described to them, the defendant 
was guilty of assault and battery. The jury, under 
this charge, returned a verdict of guilty ; but the case 
went to a higher court, where the following opinion 
was delivered by Judge Gaston: 

“It is not easy to state, with precision, the power 
which the law grants to schoolmasters and teachers, with 
respect to the correction of their pupils. It is analo- 
gous to that which belongs to the parents, and the au- 
thority of the teacher is regarded as a delegation of 
parental authority. One of the most sacred duties of 
parents, is to train up and qualify their children for be- 
coming useful and virtuous members of society ; this 
duty can not be effectually performed without the abil- 
ity to command obedience, to control stubbornness, to 
quicken diligence, and to reform bad habits ; and to 
enable him to exercise this salutary sway, he is armed 
with the power to administer moderate correction when 
he shall believe it to be just and necessary. The 


12 


teacher is the substitute of the parent ; is charged, in 
part, with the performance of his duties, and in the ex- 
ercise of these delegated duties is invested with his 
power. The law has not undertaken to prescribe 
stated punishments for particular offenses, but has con- 
tented itself with the general grant of the power of 
moderate correction, and has confided the graduation 
of punishments, within the limits of this grant, to the 
discretion of the teacher. The line which separates 
moderate correction from immoderate punishment can 
only be ascertained by reference to general principles. 
The welfare of the child is the main purpose for which 
punishment is permitted to be inflicted. Any punish- 
ment, therefore, which may seriously endanger life, 
limbs, or health, or shall disfigure the child, or cause 
any other permanent injury, may be pronounced in it- 
self immoderate, as not only being unnecessary for, but 
inconsistent with, the purpose for which correction is 
authorized. But any correction, however severe, which 
produces temporary pain only, and no permanent ill, 
cannot be so pronounced, since it may have been neces- 
sary for the reformation of the child, and does not in- 
juriously affect its future welfare. We hold, therefore, 
that it may be laid down as a general rule, that teachers 
exceed the limits of their authority when they cause 
lasting mischief ; but act within the limits of it, when 
they inflict temporary pain. When the correction ad- 
ministered is not in itself immoderate, and, therefore, 
beyond the authority of the teacher, its legality or ille- 
gality must depend entirely, we think, on the quo animo 
with which it was administered. Within the sphere of 
his authority, the master is the judge when correction 


13 


is required, and of the degree of correction necessary * 
and like all others intrusted with a discretion, he cannot 
be made penally responsible for error of judgment, but 
only for wickedness of purpose. The best and the 
wisest of mortals are weak and erring creatures, and in 
the exercise of functions in which their j udgment is to 
be the guide, cannot be rightfully required to engage 
for more than honesty of purpose, and diligence of ex- 
ertion. His judgment must b o presumed correct, be- 
cause he is the judge, and also because of the difficulty 
of proving the offense, or accumulation of offenses, that 
called for correction ; of showing the peculiar temper- 
ament, disposition, and habits of the individual cor- 
rected ; and of exhibiting the various milder means 
that may have been ineffectually used before correc- 
tion was resorted to. But the master may be punished 
when he does not transcend the powers granted, if he 
grossly abuses them. If he use his authority as a 
cover for malice, and, under pretense of adminis- 
tering correction, gratify his own bad passions, the mask 
of the judge shall be taken off, and he shall stand 
amenable to justice, as an individual not invested with 
judicial power. We believe that these are the rules 
applicable to the decision of the case before us. If they 
be, there was error in the instruction given to the jury : 
that if the child was whipped by the defendant, so as 
to occasion the marks described by the prosecutor, the 
defendant had exceeded her authority, and was guilty 
as charged. The marks were all temporary, and, in a 
short time, all disappeared. No permanent injury was 
done to the child. The only appearances that could 
warrant the belief, or suspicion, that the correction 


14 


threatened permanent injury, were the bruises on the 
neck, and the arms ; and these, to say the least, were 
too equivocal to justify the court in assuming that they 
did threaten such mischief. W e think that the instruc- 
tion on this point should have been, that unless the 
jury could clearly infer from the evidence, that the cor- 
rection inflicted had produced, or was in its nature cal- 
culated to produce, lasting injury to the child, it did not 
exceed the limits of the power which had been granted 
to the defendant. We think also, that the jury should 
have been further instructed, that however severe the 
pain inflicted, and however, in their judgment, it might 
seem disproportionate to the alleged negligence or of- 
fense of so young and tender a child, yet, if it did not 
produce or threaten lasting mischief, it was their duty 
to acquit the defendant ; unless the facts testified in- 
duced a conviction in their minds that the defendant 
did not act honestly in the performance of duty, accord- 
ing to her sense of right ; but, under the pretext of 
duty, was gratifying malice. We think that rules less 
liberal toward teachers, can not be laid down without 
breaking in upon the authority necessary for preserv- 
ing discipline, and commanding respect, and that al- 
though these rules ]eave it in their power to commit 
acts of indiscreet severity with legal impunity, these 
indiscretions will probably find their check and correc- 
tion in parental affection, and in public opinion ; and 
if they should not, that they must be tolerated as a part 
of those imperfections and inconveniences which no hu- 
man laws can wholly remove, or redress. v 

Reference has already been made to the statutory 
law of this State, which is as follows : 


15 


“ Every teacher shall have power to hold every pupil 
to a strict accountability in school, for any disorderly 
conduct on the way to or from school, or during 
intermission or recess. 7 ’ * * * 

It also conferred upon this Board the power — 
u To make, establish and enforce all necessary and 
proper rules and regulations, not contrary to law, for 
the government and progress of public schools within 
the * * city and county, the teachers thereof and 

the pupils therein, and for carrying into effect the laws 
relating to education.” * * * 

The Board, acting under the power thus conferred 
upon it, and composed of men elected by the people, has 
ordained among other regulations the following : 

11 The teachers shall practice such discipline in the 
schools as would be exercised by a kind, firm, judicious 
parent in his family ; and they shall avoid corporal 
punishment when good order can be preserved by 
milder measures. * * The principals shall be 

held responsible for the general management and 
discipline of the schools, and the other teachers shall 
follow their directions and co-operate with them, not 
only during the school hours, but during the time when 
the pupils are on the school premises, before and after 
school and during recesses. The sub-master shall, 
under the direction of the master, have charge of the 
school during his absence. The daily sessions shall 
commence at nine o’clock a. m. and close, in grammar 
schools, at a quarter to three o’clock, * * provided, 

that nothing in this Section shall be so construed as to 
prevent teachers from the judicious exercise of the right 
to retain a pupil for a reasonable time after the regular 


16 


hour for dismissing school, either for purposes of 
discipline or to make up neglected lessons.” 

Knowing the high esteem with which several of our 
distinguished jurists and lawyers are held by this 
community, their opinions were sought and obtained in 
the shape of answers to the following questions, to wit : 

“ To what extent is a teacher justified in punishing a 
refractory pupil to compel him to obey a reasonable 
request of the teacher or judicious regulation of the 
school ? 

If justified in punishing, can he do this by whip- 
ping ?” 


The following is the opinion of Judge Currey : 

Gentlemen : As a committee of the Board of Edu- 
cation of this city you have submitted to me for my 
answer, certain questions which may be condensed as 
follows : 

First. Has a teacher or schoolmaster authority in any 
case to punish a pupil of whom he has the charge, for 
an infraction of a law or regulation of the school ? 

Second. In case he has such authority, to what 
extent may he exercise it. and may he exercise it by 
whipping the guilty pupil ? 

The schoolmaster's authority over the pupil is in its 
nature parental. While the relation of teacher and 
pupil actually exists, the former stands to the latter in 
loco parentis, and has such a portion of the power of 
the parent committed to his charge, viz : that of 
restraint and correction, as may answer the purposes for 
which he is employed. This is in substance the doc- 
trine laid down by eminent jurists. 


17 


What are the purposes for which the tutor or school- 
master is employed? One of such purposes is to 
instruct the child in the branches of learning directed 
by the proper authority ; and another is to teach and 
discipline him to the proper observance of and sub- 
mission to the laws and regulations provided as rules 
of conduct in all his relations as a pupil and member of 
the school. 

The teacher is under obligation to see that the child 
progresses in his studies, and also that he does not 
acquire bad habits ; and if under other influences or 
neglect the child has already become the subject of 
vicious tendencies, it is the duty of the teacher to use 
his efforts to restrain and reform him, and for this pur- 
pose it may be and often is necessary to impose 
corporal punishment as the only means to accomplish 
the end required. 

In one case an eminent judge, discoursing upon this 
subject, said : “It is not easy to state with precision 
the power which the law grants to schoolmasters and 
teachers with respect to the correction of their pupils. 
It is analogous to that which belongs to parents, and 
the authority of the teacher is regarded as a delegation 
of parental authority. One of the most sacred duties 
of parents is to train up and qualify their children for 
becoming useful and virtuous members of society. 
This duty cannot be effectually performed without the 
ability to command obedience, to control stubbornness, 
to quicken diligence and to reform bad habits ; and to 
enable him to exercise this salutary sway, he is armed 
with the power to administer moderate correction when 
he shall believe it to be just and necessary. The 


18 


line which separates moderate correction from immod- 
erate punishment, can only be ascertained by reference 
to general principles. u When the correction admini- 
stered, ” says the same authority, “ is not in itself immod- 
erate, and therefore beyond the authority of the teacher, 
its legality or illegality must depend entirely upon the 
quo animo with which it was administered. Within the 
sphere of his authority the master is judge when cor- 
rection is required and of the degree of correction 
necessary ; and like all others intrusted with a dis- 
cretion, he cannot be made personally responsible for 
error of judgment, but only for wickedness of purpose. 
His- judgment must be presumed correct, because he is 
the judge, and also because of the difficulty of proving 
the offence or the accumulation of offences, that called 
for correction ; of showing the peculiar temperament, 
disposition and habits of the individual corrected ; and 
of exhibiting the various milder means that may have 
been ineffectually used before correction was resorted 
to. If he use his authority as a cover for malice, and, 
under the pretense of administering correction, gratify 
his own bad passions, the mask of the judge shall be 
taken off, and he shall stand amenable to justice, as an 
individual not invested with judicial power.” 

The language above quoted is that of a court passing 
up6n a case involving the right of a teacher to admin- 
ister corporal punishment by whipping an insubordi- 
nate and disobedient pupil, and this is only one of 
many cases on the subject of punishment by the use of 
the rod. 

The extent of punishment, when it becomes necessary, 
is a question of much difficulty, and its justification 


19 


depends upon the circumstances of each particular 
case. The punishment in all cases should be reason- 
able, and only sufficient to reduce to obedience the 
offending pupil. When it exceeds this the master him- 
self becomes criminal, and amenable to the law as an 
offender against its letter and spirit. Hence it becomes 
him to be careful in the exercise of his authority, and 
not make his power a pretext for cruelty and oppres- 
sion. If upon investigation his motives appear to have 
been good, and his conduct free from malice, he should 
not be held liable on the ground that the punishment 
was excessive, unless it appear to have been clearly so, 
and would be so held in the general judgment of reason- 
able men. It thus appears that the law of the land 
sanctions corporal chastisement of insubordinate pupils, 
and furnishes an affirmative answer to the questions 
propounded. 

Very respectfully, etc., 

JOHN CURREY. 


The following is the opinion of Judge Heydenfeldt : 

Gentlemen : — In reply to the questions propounded 
in your circular of the 14th inst., I give it as my opinion 
that a teacher is justified in punishing a refractory boy 
to the point of compelling obedience or submission, 
provided no permanent injury is inflicted, which need 
never be the case if ordinary sagacity is one of the 
qualifications of the teacher. 

Whipping is the best and most effective punishment, 
and the only one which inspires a wholesome fear in 
children. 

Yours Respectfully, 

S. HEYDENFELDT. 


20 


The following is the opinion of Mr. Shafter : 

Gentlemen : — In answer to your questions, I have to 
say I have no doubt of the right of the schoolmaster to 
correct his scholar, nor that he may do this by whipping. 

An able Court says: “The plea is based upon the 
right of a schoolmaster to correct his scholar, a right 
which has always been practically and judicially sanc- 
tioned. But it rests upon similar ground as the right 
to correct a child or servant, and the chastisement must 
not exceed the limits of a moderate correction ; and 
though courts are bound, with a view to the maintenance 
of necessary order and decorum in schools, to look with 
all reasonable indulgence upon the exercise of this right, 
whenever the correction, as confessed by the pleadings 
or as proved on the trial, shall appear to have been 
clearly excessive and cruel, it must be adjudged illegal .’ 1 
RasteWs Entries , a very old book, contains a plea of 
justification by a schoolmaster, for the infliction of 
moderate correction upon his scholar, a proof that such 
a defense has been long admitted. All the difficulty 
arises from the questions 1st. On what occasion has 
the schoolmaster the right to correct? 2d. To what 
extent may he go in inflicting physical pain or correction? 

The first question must be answered, only in case of 
personal misconduct on the part of the scholar, and 
even then, only when there is a fair probability that 
such correction will be for the benefit of the scholar 
himself. There is no right to punish for the benefit of 
others, that is, for the school at large. Still less has the 
schoolmaster a right to vindicate his real or imaginary 
personal importance. The authority of the schoolmaster 
is not governmental in its public sense, but of a private, 


21 


domestic character, delegated by the parent for the 
purpose of education of that child , and confined to that 
purpose solely. The very term moderate correction , 
excludes all considerations but those that affect the 
individual scholar. 

Second, as to the extent of the correction. It must 
be correction and not vengeance nor pain uselessly 
inflicted. It must be moderate. This question of 
moderation is a difficult one, by schoolmasters sometimes 
settled in a hurry, under the stimulus of personal feeling 
and surroundings, not always conducive to sound 
judicial conclusions. But it is one which must be settled 
by the schoolmaster, and that too, at his peril. He is 
not a judicial officer; he has no right to put himself in 
the place of the magistrate, nor even of the parent. 
The power of the magistrate is fixed by statute or 
written law. The parent is bound to keep his child 
within his family, and must enforce discipline upon each 
child for the benefit of all. This necessity, coupled 
with consideration of what may be expected of parental 
discretion, have induced courts to leave to or recognize 
in the parent a larger power than is conceded to the 
schoolmaster. In short, the rights and pow T ers of the 
parent and schoolmaster are not co-extensive. 

The question you put as to extent of power of 
punishment, presents the point whether this power 
may compel absolute obedience to “a reasonable 
request of the teacher,” or, what is the same thing, to 
“ a judicious regulation of the school.” I think no such 
power belongs to the schoolmaster. He is at liberty to 
correct to that extent which there is a reasonable 
probability for supposing will favorably affect the 


22 


conduct of the scholar ; always, however, under the 
reservation that the body shall receive no serious injury, 
and that the correction, within a fair and judicious 
judgment, is neither cruel nor excessive. In this 
condition — want of exactness, like all other matters 
resting in opinion — this question must be left. 

As a schoolmaster, I have inflicted corporal punish- 
ment both upon the hand and body in a few instances, 
with considerable severity. The results of my own 
experience lead me to say, if the schoolmaster will in 
all cases refrain from punishment until he is quite sure 
that he is in a fit mental condition to judge of its 
necessity and extent, he will make few or no mistakes, 
and secure to himself his own approbation and the 
cordial approval of all just-minded men. 

J. McM. SHAFTER. 


The following is the opinion of McAllisters & 
Bergin : 

Gentlemen : — In reply to your communication, 
desiring to be informed to what extent a teacher is 
justified in punishing a refractory pupil, to compel 
obedience to his reasonable request, or the judicious 
regulations of the Department or the school : 

We beg to state that there is no statutory rule of law 
on the subject. The 67th Section of the Revised 
School Law, (Statutes of 1865 and 1866, page 400,) 
while it does not expressly authorize the teacher to 
punish in school, evidently justifies punishment by 
implication. The rule of the Common Law, to which 
we are thus left in absence of any statutory rule, is 


23 


necessarily vague and not susceptible of expression with 
absolute precision. As generally stated, it is that 
the teacher has the legal right to inflict moderate 
corporal chastisement upon a refractory or contumacious 
pupil. The punishment must, of course, be reasonable 
and moderate, imposed for the purpose of correction, 
and with means appropriate to the age, sex and physical 
condition of the pupil. When thus imposed within the 
bounds of reason, the action of the teacher in good 
faith will be sanctioned by law ; but for any excess of 
punishment over what is reasonable in view of the age, 
the sex, physical strength, character of the pupil, and 
the occasion for the punishment, the teacher will 
be responsible. 

There is indeed a decision in the case of The People 
vs. Pendergast, 1 Devereux and Battles, page 365, 
which holds that the teacher may inflict any punishment 
not in its nature calculated to produce lasting injury to 
the child, and that mere bruises on the person are not 
of themselves of such permanent injury as will make 
the teacher responsible. This is, however, further than 
the current of authorities on the subject goes, the rule 
that they establish being that which we have already 
stated. Of course, it' will always be a question of fact 
in each particular instance for the court or jury to 
determine, whether the punishment was, in view of all 
of the attending circumstances, reasonable. 

McAllisters & bergin. 

San Francisco, March 18th, 1870. 


The following is the opinion of Messrs. Williams & 
Thornton : 


24 


Gentlemen. — Your communication of the 14th inst. 
propounds to us the following questions, and requests 
an answer : 

“To what extent is a teacher justified in punishing a 
refractory pupil, to compel him to obey a reasonable 
request of the teacher or judicious regulation of the 
school r 

u If justified in punishing, can he do this by whipping?” 

The power of the teacher is analogous to that of the 
parent. Such is the common law ; and as that system 
of law obtains in our State, except when changed by 
the organic law or by legislative enactment, the 
aforementioned rule of the common law never having 
been changed in the manner referred to, constitutes the 
rule for our guidance. 

In fact, the rules provided by positive enactment in 
this State, have recognized and established the common 
law in this respect. This, in our opinion, is the effect 
of the Tenth Section of the llegulations of the Public 
Schools, enacted by the Board of Education for the 
Cit} r and County of San Francisco. These regulations 
were made by the Board by virtue of authority 
delegated to them by an Act of the Legislature, 
approved April 27th, 1863, and amended March 12th, 
1861, (See Second Section, Fourth subdivision of that 
Section,) and therefore have all the authority of law. 

The Tenth Section above referred to, is in these 
words : 

“The teachers shall practice such discipline in the 
schools as would be exercised by a kind, firm, judicious 
parent in his family, and they shall avoid corporal 
punishment when good order can be preserved by 


25 


milder measures. It is strictly enjoined upon all 
teachers in the schools to avoid all appearance of 
indiscreet haste in the discipline of their pupils ; and in 
the more difficult cases that may occur, to apply to the 
Superintendent for advice and direction.” 

Now, what is the power of the parent? He is 
authorized to administer such moderate correction to 
his child as a reasonable parent would, under the 
circumstances. This follows from the right to govern, 
and as incident thereto. It is not only the right of the 
parent to govern the child, but it is his duty to do so, 
that he may fit him to discharge the social obligations 
and responsibilities devolving upon him in his subsequent 
life. If necessary to enforce this authority, he may 
lawfully inflict corporal punishment. 

The extent of this power in the administration 
of corporal punishment is indicated above. It must be 
moderate and reasonable under the circumstances. 
The limit of the power, it will be seen, is in a measure 
vague. What is moderate and what is reasonable is 
relative, and can only be determined by a consideration 
of all the circumstances attending the particular case. 
The law, it will be seen, fixes the rule in this general 
way, leaving it to the triers, whether they be court or 
jury, to apply the general rule to the case under 
consideration. It cannot be said, by anticipation, what 
all the facts or circumstances of any particular case may 
be ; but generally, they are the nature of the offense, 
the character and disposition of the child, its sex, age, 
size, and apparent powers of endurance, the instrument 
used for and the temper displayed, in inflicting the 
punishment, to which we may add, the manner in which 


26 


it is received. There may be other circumstances 
which bear upon this inquiry. Whatever ihey may be, 
they must all be weighed and considered, to determine 
whether the power has been exceeded. 

Now, it is clear that what is moderate and reasonable 
in one case will not be so in another, and therefore 
from the very nature of the power, the parent must be 
allowed to use his own judgment in its exercise. He 
must determine for himself what is moderate and 
reasonable in each particular case, and this discretion 
the law wisely concedes to him. Therefore, it follows 
that all admittedly immoderate and excessive punish- 
ments are unreasonable and unlawful. There can be no 
difficulty in deciding such a case. The difficulty arises 
when there is apparently an excess of punishment. 
Such cases cannot be tried without looking closely into 
the circumstances. Then, as we have said above, the 
question of guilt or innocence must be determined 
upon a calm and dispassionate consideration of all the 
facts attending the case, always bearing in mind, 
however, that the parent is allowed to exercise his 
judgment in the premises, and that he cannot be 
condemned when he might reasonably conclude, under 
the circumstances, that he might administer the 
punishment inflicted ; for the law holds no man 
responsible for mere error of opinion. But if the 
circumstances show that the parent, in such a case as 
the one mentioned, was knowingly exceeding the limit 
of his power, or that he acted from wicked motives, 
with a view to gratify his own bad passions under the 
pretext of discharging the obligation and duty to 
govern and correct his child, he would then challenge 


27 


and should receive condemnation. In such a case his 
power would be unlawfully exercised. 

The teacher, in the discharge of his high and 
responsible duties, in the government and discipline of 
the school, acts with like power and authority and 
under the same obligations and limitations as the 
parent, and therefore, in reply to your questions, we 
say that the teacher is authorized by law to endeavor 
to compel obedience in the case put in your note, by 
whipping with a proper instrument. But if a reasonable 
whipping, under the circumstances (always leaning to 
moderation) will not secure obedience, some other mode 
of punishment should be resorted to. 

We will add here, that there is one circumstance in 
the case of the teacher, which does not attend the case 
of a parent inflicting punishment. The teacher has 
usually a much larger number of children under his 
control and government than a parent ; and, therefore, 
in order to secure discipline in the school, it may be re- 
quisite to allow a teacher greater latitude than a parent, 
inasmuch as it is more difficult to secure discipline among 
a large, than a small number. Then this circumstance 
should also be considered in determining whether a 
teacher has exceeded his power. As to the rule which 
the law furnishes to determine what is moderate, and 
what immoderate punishment, we would say, that any 
punishment which may seriously endanger life, limb, or 
health, or disfigure the child, or cause any permanent 
injury, is immoderate in itself, and therefore unlawful, 
but a punishment which produces temporary pain only, 
and no permanent injury, or disfigurement, is not per 
se immoderate ; but, whether so or not, must be deter- 


28 


mined upon the principles above declared in this com- 
munication. In every case, the teacher, or parent, 
should have the benefit of a reasonable doubt. 

In conclusion, we would refer you to Reeves Domes - 
tic Relations , pp. 288, 289, where will be found a lumin- 
ous and concise statement of the law upon the points 
submitted to us. 

Yours, respectfully, 

WILLIAMS & THORNTON. 

The following extract from Reeve’s Domestic Rela- 
tions, pages 288 and 289, is referred to in the above 
communication from Williams & Thornton : 

u The parent has a right to govern his minor child ; 
and, as incident to this, he must have power to correct 
him. The maxim is, that he has power to chastise him 
moderately. The exercise of this power must be, in a 
great measure, discretionary. He may so chastise his 
child, as to be liable in an action by the child against 
him for a battery. The child has rights which the law 
will protect against the brutality of a barbarous parent. 
I apprehend, however, it is a point of some difficulty 
to determine, with exact precision, when a parent has 
exceeded the bounds of moderation. That correction 
which will be considered, by some triers, as unreason- 
able, will be viewed by others as perfectly reasonable. 
What may be considered, by some, a venial folly, to 
which none or very little correction ought to be applied, 
by others will be considered as an offence that requires 
very severe treatment. The parent is bound to correct 
a child, so as to prevent him from becoming the vic- 
tim of vicious habits, and thereby proving a nuisance 


29 


to the community. The true ground on which this 
ought to be placed, I apprehend is, that the parent 
ought to be considered acting in a judicial capacity, 
when he corrects ; and, of course, not liable for errors 
of opinion. And although the punishment should ap- 
pear to the triers to be unreasonably severe, and in no 
measure proportioned to the offense, yet, if it should 
also appear, that the parent acted conscientiously, and 
from motives of duty, no verdict ought to be found 
against him. But when the punishment is, in their 
opinion, thus unreasonable, and it appears that the parent 
acted malo animo, from wicked motives, under the in- 
fluence of an unsocial heart, he ought to be liable to dam- 
ages. For error of opinion he ought to be excused ; 
but for malice of heart, he must not be shielded from 
the just claims of the child. Whether there was malice, 
may be collected from the circumstances attending 
the punishment. The instrument used, the time when, 
the place where, the temper of heart exhibited at the 
time* may all unite in demonstrating what the motives 
were, which influenced the parent. These observations 
are equally applicable to the case of a schoolmaster, 
or to any one who acts in loco parentis” 


The following questions were addressed to a number 
of our leading physicians, and replied to as below: 

1. Admitting the necessity of whipping a refractory 
pupil in a school, for the purpose of compelling obe- 
dience to a reasonable request, or regulation, on what 
part of the person is it most judicious to administer the 
blows ? 


30 


2. Are blows given on the back likely to produce 
greater injury to the individual, than if given with like 
force on any other part of the person ? 

Dr. Thos. Bennett says: “The back, by all 
authorities, is the place on which corporal punish- 
ment should be inflicted. ” 

Dr. F. W. Holman, in reply to question No. 1 — 
“over the shoulders, or over the lower part of 
the back. To No. 2 — “ no.” 

It. T Maxwell says : “In reply to question No. 1 — 
upon the shoulders, or the back, or any part of it. To 
question No. 2 — in my opinion, decidedly not.” 

Dr. J. Letterman says: “I concur in the opinions 
above expressed by Dr. Maxwell.” 

The person of the boy punished was submitted to a 
number of our physicians, for the purpose of getting 
opinions as to his condition. Their certificate is as 
follows : 

San Francisco, March 11, 1870. 

We, the undersigned, physicians of this city, hereby 
testify that we examined the boy, John Goldsmith, on 
account of corporal punishment received, as stated, 
from the hands of his teacher, Mr. Robertson, eight 
days after the punishment had been inflicted. We found 
the skin discolored, but not cut, or broken, in any 
place; and, considering the obstinacy of the boy, do 
not believe that he got more than he deserved, and that 
the punishment could not injure him at all. 

Signed, 

R. McMILLAN, M. D. 

F. LOEHR, M. D. 

Dr. C. PRECHT. 


31 


Your Committee also viewed his naked back on the 
10th inst., just one week after the whipping took place, 
and found but slight evidences remaining of punish- 
ment having been inflicted. 

In reply to verbal interrogatories, your Committee 
were informed by some of the physicians, that some 
persons were much more susceptible of manifesting 
bruises in their flesh than others ; and, that marks on 
the back, caused by a whipping, and carried for two 
weeks, would not necessarily indicate that the whipping 
had been excessively severe. 

Your Committee cannot condemn, in too strong 
terms, the indecent haste and want of consideration, 
with which the case, now under investigation, was forced 
before the public. This Board has ever been found 
ready to correct, to the extent of its power, abuses ex- 
isting in our schools. In this case the opportunity was 
denied it, by the precipitate manner in which it was 
rushed into the columns of a newspaper, and through 
the Police Court. 

Says Hon. Horace Mann : “If the parent has reason 
to suppose that the punishment was too severe, or that 
the mode or spirit of inflicting it was improper, let him 
seek a private interview with the teacher, frankly state 
his apprehensions, and then, like an honest and impartial 
man, hearken to the defense that may be made. Only 
in cases made flagrant by their excess or their frequency, 
should the conduct of the teacher receive public 
animadversion . v 

Nothing, as yet, has been stated herein concerning the 
the previous character of the boy John N. Goldsmith, 
as the punishment given him on the 3d inst., was for a 


32 


distinct offense; and Mr. Robertson knowing nothing of 
his earlier history, the antecedents of the boy have 
been purposely avoided in giving a history of the case. 
But as much sympathy has been created for him, and 
unwarranted statements have been made through the 
columns of a portion of the press, calculated to mislead 
the public, your committee have deemed it proper in 
this connection, to state some facts connected with his 
general character. There seems to be but one opinion 
on the part of those in our schools who have had the 
charge of him. Dr. Lucky, the former principal of the 
school, now in charge of the State Normal School, says 
that “he was during the time I was in Lincoln School, a 
very disobedient and stubborn boy. For refusing to 
obey his teacher I punished him severely.” Miss E. 
T. Pearson says a John Goldsmith was a member of 
my class when Dr. Lucky was principal. On two oc- 
casions he positively refused to obey. He ran away 
from Mr. Prior, and gave as an excuse 1 that his father 
told him not to let any one punish him at school.’ 
Before the class he declared Dr. Lucky should not pun- 
ish him. He was a troublesome and careless pupil, and 
when he left my grade I congratulated myself on being 
rid of a boy whose influence had been only evil.” 
Miss Holbrook says “John Goldsmith was a member 
of my class for three months, during which time he 
was an idle troublesome boy. He did not hesitate to 
tell a falsehood for the slightest cause ; a boy whom I 
could never trust.” Miss Kincaid says “ Having had 
John Goldsmith in my class five months, I can testify 
to his being extremely obstinate and troublesome.” 
Mrs. Towle, under whose charge he was during the 


33 


school year ending June 18G9, says “ During the entire 
time that he was under my instruction, he was a con- 
tinual source of trouble and care, being negligent in 
lessons, insolent in manner and peculiarly obstinate in 
disposition, never obeying even in small things, until 
obliged to. He possessed a bad influence over his 
associates, and I complained of him several times to the 
Principal of the school, as being not only a great trouble 
to me, but also as being an injury to the class. The 
records of the school where he has attended for three 
years, tell the same story of his waywardness and 
wrong-doing. His mother, in her testimony before the 
Committee, admitted the fact of his having run out of 
school when under charge of Dr. Lucky, but excused 
the deed as the father was more to blame, he having 
instructed his boy to do so rather than take a whip- 
ping from Dr. Lucky. For more than six months his 
teachers have been compelled to assign him a seat apart 
from all other pupils, as his influence was so pernicious. 
It would seem that much has been wrong in this boy’s 
education at home, and where such is the case, the 
evil effects can hardly fail of manifestation, whether at 
school or elsewhere. 

Your Committee would not disguise the fact, that 
there is a sentiment abroad — nor is it confined to few — 
averse to corporal punishment, under any circum- 
stances; its advocates being sincere in their opposition 
to whipping, believing moral suasion more efficacious 
than the rod. We do not here speak of those opposed 
to punishments in any and every shape, although such 
a class doubtless can be found among us; but of those 
who would banish the rod entirely. The opinions of 


34 


this class are not to be underrated, for they can, beyond 
a doubt, show that the amount of whipping in our 
schools during the past twenty years has diminished in 
a wonderful ratio, while our schools have, at the same 
time, made corresponding improvements. It should be 
the aim of every teacher to reduce the cases, not only 
of whipping, but of every form of punishment in our 
schools to the fewest number possible. 

While admitting that we should rejoice most heartily 
to see the use of the rod entirely abolished in our 
schools, we are not prepared to advise such a regu- 
lation at present, but do recommend that our teachers 
use it, if at all, rarely, and only as a last resort. We 
would urge upon our teachers the advantage of leading 
rather than driving their pupils, of more frequent 
intercourse with the parents, and of making themselves 
familiar with progressive movements in educational 
matters, outside of their own schools and city. 

Your Committee believe that in our schools there 
must be, as in communities, a last resort to prevent a 
greater evil. This last resort in our schools for boys, 
has been the allowance of the use of the rod. We 
know of no substitute in such cases, except that of 
expulsion , and this latter we are not prepared to 
recommend, nor do we believe that the public, repre- 
sented through this Board, would sanction it. The 
Public Schools are established and sustained in the 
interests of the community, and every individual of 
this community expects, and has a right to require, 
that these schools shall make of their pupils better 
boys, and that when they are permitted to assume the 
duties of citizens, that not only life and property will 


35 


be safer from their presence in our midst, but that 
good morals will be promoted and good influences 
exerted. Believing then, that no system of public 
education is complete that does not include the reform- 
atory, and that to expel boys from our schools would 
have the effect to send them forth into our streets 
where they would, from the opportunities afforded 
them, soon become apt scholars in vice and crime, we 
deem it unwise to make, at present, any material 
alterations in the rules and regulations for the govern- 
ment and discipline of our schools. But, having 
understood that in Boston and in some other eastern 
cities, schools are established and under the control of 
the Boards of Education, to which incorrigible children 
are sent, for the double purpose of working their 
reformation and placing them where they cannot exert 
pernicious influences upon purer minds, we would 
recommend that the Superintendent be requested to 
obtain such information upon the subject as he may be 
able, by correspondence or otherwise, and report the 
same to this Board. 

In conclusion, your Committee submit that having 
made diligent inquiry and thorough investigation into 
the case set forth herein, they find that the offence on 
the part of the pupil was a very aggravated one, and 
justified a severe punishment, and recommend that the 
course of Mr. Robertson in the affair be sustained by 
this Board. 



San Francisco, March 22d, 1870. 


LIBRARY OF CONGRESS 



0 019 851 845 1 


